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Two years ago, Dr. Reputation noticed a slowdown in his practice, which he attributed to the poor national economy. Recently, however, other dermatologists have reported an upturn in their schedules. One day, a loyal patient tells Dr. Reputation that a popular physician grade website gives Dr. Reputation a failing grade. Can Dr. Reputation sue to find out the methods used by the website?
Dr. Reputation has successfully practiced dermatology in a small Midwestern town for almost 10 years. For the first five years of his practice, his schedule was almost always full, and for the following two years, he always had a waiting list of appointments.
One day, a loyal patient tells Dr. Reputation that while he greatly respects the dermatologist, others do not agree. The patient explains that a popular physician grading website gives Dr. Reputation a failing grade, whereas the other four dermatologists in the area are graded as being excellent. Dr. Reputation is furious and contacts the website and demands to know the method by which physicians are graded. He is told that this method is proprietary and will not be revealed to him. Despite threatening a lawsuit, he receives no information. Can Dr. Reputation sue to find out the methods used by the "physician evaluation" website?
It should come as no surprise that many consumers actively search out information before making purchase decisions for both product and service preferences. Consumers are increasingly willing to utilize information available to them when purchasing cars, computers and household appliances.
Decisions about healthcare providers are no different. Because quality of care is the biggest concern for Americans choosing healthcare plans, consumers are increasingly implementing supplementary research steps before making healthcare-related decisions. In fact, 80 percent of individuals now gather information on the Internet before seeking nonemergency medical care (Penn M, Zalesne EK. New Info Shoppers. Wall Street Journal. Jan. 8, 2009).
A 2007 study showed that consumers trusted independent physician-rating organizations nearly twice as much as they did physicians, hospitals, pharmaceutical companies or friends and family members (Gary Ahlquist, et al eds. Consumer and Physician Readiness for a Retail Healthcare Market: Changing the Basis of Competition. Booz Allen Hamilton Inc. 2007). Consumers are being increasingly exposed to "quantitative" information regarding healthcare quality, but studies show that consumers utilize information in their decision-making processes only when the data contains meaningful comparisons and evaluations. It is argued that providing consumers with accurate, objective quality-of-care information accompanied by the proper context would only improve the consumer healthcare market, driving quality up and prices down.
Rating systems and the law
In general, most physician-rating systems use some methodology of compiling data in order to rank the physician. The question is whether this method can be copyrighted so that a questioning physician has no right to obtain disclosure of the methods used in such a system.
Historically, copyright law provides incentives for authors and artists to create new works that benefit society. These incentives must always be weighed against the competing value to society of greater public access to these works. Therefore, copyright protection is granted for a set period of time. It also does not extend to certain things, such as discoverable facts.
Although courts have not extended copyright protection to "created facts," some courts have determined that "fact compilation" methods are not created facts, but instead represent "original creations" that are protected by "copyright law." In 1997, the Seventh Circuit Court grappled with this very issue. Were classification systems copyrightable? The court ruled that such classifications were "creative endeavors."
Although that specific court was not dealing with healthcare providers, the treatment of classification systems as copyrightable can easily be applied to healthcare ratings. In fact, in a recent case (Health Grades Inc. v. Robert Wood Johnson University Hospital), another court found that healthcare ratings for medical providers were meant as "an expression" of collected and analyzed data and protected by copyright law.
It is understandable that Dr. Reputation is upset about his poor website ranking. He is right to want to know the mechanism of this ranking system. However, if other courts rule as did the Health Grades court, such medical ranking systems are copyrightable.
David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.